Bills Digest No. 153 2002-03
Maritime Legislation
Amendment (Prevention of Pollution from Ships) Bill
2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Maritime Legislation Amendment
(Prevention of Pollution from Ships) Bill
2003
Date Introduced:
25 March 2003
House: House of Representatives
Portfolio: Transport and Regional
Services
Commencement:
The Bill itself
commences on Royal Assent. The main operational provisions
(Schedule 1) only commence when certain parts of previously-passed
legislation themselves commence.
To amend the
Navigation Act 1912 and the Protection of the Sea
(Prevention of Pollution from Ships) Act 1983 to allow
ratification and implementation of Annex IV of the Convention for
the Prevention of Pollution from Ships, 1973/78.
Australia is a Party to the International
Convention for the Prevention of Pollution from Ships 1973/78,
commonly known as the MARPOL Convention. The origins of MARPOL
largely lie in the international reaction to the grounding of the
Torrey Canyon oil tanker in the English Channel the late
1960s. That accident resulted in the spillage of 120,000 tons of
crude oil into the sea, causing massive environmental damage.
MARPOL was developed by the International Maritime Organisation
(IMO), of which Australia is a founding member.
MARPOL includes 6 technical Annexes, each
dealing with a different form of marine pollution. The Maritime
Legislation Amendment (Prevention of Pollution from Ships) Bill
2003 (the Bill) relates to Annex IV, which deals with ship-based
sewage.
While Annex IV has been existence for many
years, it has not still come into force internationally because
until recently not enough countries had agreed to ratify it. The
Commonwealth actually passed legislation back in 1986 (the
Protection of the Sea Legislation Amendment Act 1986)
that, amongst other things, placed Australia in a position to
ratify Annex IV and implement it domestically. However, with the
delay in Annex IV coming in to force internationally, the
provisions of that legislation related to Annex IV were apparently
never proclaimed.
In March 2000, the IMO reached agreement on
changes to Annex IV that have resulted in sufficient countries
ratifying Annex IV such that it will come into force in September
2003. Under the changes, Annex IV now applies only to ships above
certain size thresholds travelling on international voyages.
Specifically, it applies to new ships of 400 gross tonnage and
above, and new ships of less than 400 gross tonnage certified to
carry more than 15 persons. For existing ships within these limits,
it will apply five years after the date the Annex comes into force,
namely September 2008.
Following the 2000
IMO agreement, the (Commonwealth-State Ministerial) Australian
Transport Council recommended that Australia should ratify Annex
IV.(1) Annex IV was also tabled before the Joint
Standing Committee on Treaties in March this
year.(2)
According to the Explanatory
Memorandum to the Bill, over 3,000 international trading ships
visited Australian ports in 1999-2000.(3) Such ships
range from large cruise liners than can discharge approximately
100,000 litres of sewage per day, to bulk carrier vessels that
might only discharge approximately 300 litres per day. Such sewage,
if discharged too near to land, can have a major impact on coastal
water quality. For example, sewage can lead to elevated levels of
nutrients which contribute to algal blooms, blocking light to the
ocean floor affecting the growth of seagrass. Oxygen depletion from
sewage breakdown also removes the oxygen required by fish and other
marine life to breathe.
Under Annex IV, discharges of sewage from
eligible ships on international voyages will be restricted as
follows:
- untreated sewage may only be discharged at a distance of more
than 12 nautical miles from the nearest land, provided that sewage
held in holding tanks is not discharged instantaneously, but at a
moderate rate when the ship is proceeded at a speed of not less
than 4 knots
- disinfected sewage may only be discharged at a distance of more
than 3 nautical miles from the nearest land, providing the system
meets technical standards set by the IMO,and
- effluent from an IMO-approved sewage treatment plant may be
discharged at any location providing the effluent does not produce
visible floating solids nor cause discolouration of the surrounding
water.
Implementation of Annex IV will enable
Australia to have consistent national standards for international
trading ships, and allow Australia to implement the full range of
enforcement measures available under MARPOL, including regular
inspections to ensure compliance and boarding a suspect vessel to
obtain evidence of possible violations.
Annex IV also places a general obligation on
Australia to ensure adequate ports facilities to meet the demand
for the reception and disposal of sewage from international trading
vessels if they cannot properly discharge it within the
restrictions mentioned above. In almost all Australian ports where
there is a demand for such facilities, this obligation is met
through the use of private contractors dealing direct with ships
through shipping agents. According to the Explanatory
Memorandum,(4) a survey of available waste
reception facilities for sewage in Australian ports carried out in
2001 as part of an IMO survey indicated that sewage discharge
facilities are available at most major trading ports and many
smaller ports.
In terms of
State-Commonwealth cooperation in relation to Annex IV, the
Australian Transport Council has agreed that the Commonwealth
legislation should apply to all jurisdictions, but with a savings
clause to preserve the operation of any existing or future
complementary State/Territory legislation.(5) This
approach has been applied in respect of the other four MARPOL
Annexes that are currently in force internationally. According to
the Explanatory Memorandum, several Australian States have
indicated that they propose to introduce legislation to control
sewage from ships. However they have been awaiting Commonwealth
action with respect of Annex IV before introducing complementary
legislation.(6)
Amongst other matters, Item 3
replaces the existing section 267ZF power to make regulations
implementing certain technical aspects of Annex IV. The current
power refers to regulations empower[ing] the Minister to make
orders . Item 3 will delete the reference to the
Minister with the result that future regulations may give the power
to make orders etc to other parties, such as the Australian
Maritime Safety Authority (AMSA).
Existing sections 267ZG-ZP relate to what are
called international sewage pollution prevention certificates .
Such certificates demonstrate the ship in question is constructed
in compliance with relevant Annex IV provisions. Currently existing
sections 267ZG-ZP allow the Transport Minister to issue these
certificates to appropriate Australian and foreign ships, cancel
them, detain ships until the surrender of certificates etc.
Items 4, 7, 9, 13, and 14 will
transfer give this power to AMSA. The Explanatory
Memorandum comments that this is:(7)
an effort to improve administrative efficiencies
by moving operational matters away from the requirements of
Ministerial approval.
Item 6 makes two changes. The
first relates to the Minister s power in existing subsection
267ZG(2) to temporarily extend the currency(8) of an
international sewage pollution prevention certificate for an
Australian ship where the certificate would have otherwise expired
in mid-voyage. Item 6 repeals this power, which
according to the Explanatory Memorandum, will now be
transferred to subordinate legislation (marine
orders)(9). Presumably the extension power will be
exercisable by AMSA, rather than the Minister, although no
indication is given. The second change effected by item
6 is to allow a survey authority to issue an international
sewage pollution prevention certificate to an Australian ship if
the authority is satisfied that the ship conforms to Annex IV
construction requirements, irrespective of whether or not the ship
is actually caught by Annex IV.(10) This change is
effected by the insertion of a new subsection
267ZG(2). The Explanatory Memorandum states that
the rationale for this provision is that it
will:(11)
enable the Australian Maritime Safety Authority to
concentrate on port State control functions and auditing of the
survey authorities without compromising the survey and
certification functions. While the Australian Maritime Safety
Authority still retains the power to issue an International Sewage
Pollution Prevention Certificate, the arrangements separate the
survey and certification function from the inspection and detention
function.
Existing section 267ZQ allows the Minister to
deny a foreign ship entry into an Australian port or access to an
off-shore terminal if it s found that its construction does not
comply with relevant Annex IV provisions. Item 17
transfers this power to AMSA for the same reason given for
item 4 etc. Item 20 amends
existing subsection 267ZQ(2) to ensure AMSA, as the Minister must
do under the current situation, only uses the section 267ZQ power
to the extent that it appears to them necessary or expedient to do
so for the protection of the environment .
Item 27 amends existing
paragraph 26D(6)(a). As originally developed, Annex IV allowed
certain treated sewage to be discharged if the relevant ship was at
least 4 nautical miles from the coast. When Annex IV was amended by
the IMO in 2000, 4 nautical miles was changed to 3. Item
27 brings existing paragraph 26D(6)(a) into line with this
change.
Item 31 repeals subsection
26D(9). Existing subsection 26D(9) deals with the situation where a
ship discharges sewage that is mixed with wastes or waste water
that are themselves covered by other MARPOL Annexes.(12)
Subsection 26D(9) only requires the most stringent of the relevant
Annexes to be complied with. However, the amended Annex IV requires
that all Annexes shall be complied with in such mixed
waste situations. Item 31, along with the
consequential amendments of items 25, 28 and
30, brings section 26D into line with the new
Annex IV requirements.
- Explanatory Memorandum, p. 9.
- The committee does not seem to have reported
as yet. See: http://www.aph.gov.au/house/committee/jsct/march2003/tor.htm
- At p. 2.
- At p. 7.
- Explanatory Memorandum, p.
7.
- Ibid.
- At p.12.
- By up to 5 months.
- See http://www.amsa.gov.au/sd/mo/mo%5Findex.htm
- For example, the ship may fall bellow the
size thresholds mentioned in the background section to this
Digest.
- At p. 13.
- For example garbage, which is covered by
Annex V.
Angus Martyn
20 May 2003
Bills Digest Service
Information and Research Services
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